majority">McAllister, P. J.

It does not seem to us that the notice given May 6, 1879, by appellant to appellee, ought to have any weight in fixing liability upon appellee for the rent of the premises in question for another year after the expiration of his lease, by tacit consent, because when the notice was given, appellee immediately vacated the premises. Had he remained after receiving the notice, that of itself would have been regarded as a tacit acquiescence in appellant’s position, unless appellee could have shown that he remained in possession under some new and other contract. So that if appellee can be held upon an agreement implied by law, to hold the premises for another year' upon the terms of the former lease, as appellant’s counsel insists he should be, such' implication must arise from the mere fact of his having held over for the period of seven days.

The questions of law discussed by appellant’s counsel arise upon the instruction which the court below gave to the jury; and he contends that the mere fact that appellee held over after the expiration of his term for" the period of seven days implies an agreement on his part to hold the premises for another year upon the terms of the former lease, and when the lessor elected to treat him as such tenant he became subject to a permanent tenancy' for that time upon those terms. The prevailing current of American decisions seem to favor that view, in-including those in this state.

Kent states the general doctrine thus: “ If the tenant holds over by consent, given either expressly or constructively'-, after the determination of a lease for years, it is held to be evidence of a new contract, without any definite period, and is construed to be a tenancy from yrear to year. The moment the tenant is suffered by the landlord to enter on the possession of a new year, there is a tacit renovation of the contract for another year, subject to the same right of distress.” 4 Kent’s Com. 112. There is a conflict among the decisions, and the point of divergence is upon the question whether in the case of holding over there is a permanent tenancy, except by mutual agreement.

Taylor states the whole doctrine thus: “It has been held that a tenant holding over after the expiration of his term, withont paying rent or acknowledging a continuance of his tenancy, was either a trespasser or a tenant at will, or from year to year, at the lessor’s election, but that slight acts on the lessor’s part, or even a lapse of time, would be sufficient to conclude that election and fix the former as tenant, although the tenant was said to have no such election. But this position is now denied, and the sounder doctrine seems to be that a tenant holding over, and being in merely by sufferance, may become a trespasser by the landlord’s entry, but can only be a permanent tenant by mutual agreement.” Taylor’s Landlord & Tenant, § 22. The learned author refers to Edwards v. Hale, 9 Allen, 462; Ackerman v. Lyman, 20 Wis. 454; Bussell v. Eabyan, 34 1ST. H. 218. Also to Bight v. Darby, 1 Term B. 159; where Lord Mansfield said: “ If there be a lease for a year, and by consent of both parties the tenant continues, they are supposed to have renewed the old agreement, which was for a year.”

Ibbs v. Richardson, 9 Ad. & E. 849; Levi v. Lewis, 6 C. B. N. S. 766, hold that in the absence of such mutual agreement, the tenant holding over is liable only for the time he occupied. Church v. Gas Co. 6 Ad. & E. 854. The instruction to the jury seem to have been based upon the latter doctrine.

It is unnecessary for us to pass upon that instruction, because, upon the undisputed testimony, and in no view of it, was the plaintiff below entitled to recover any more than she did. If the defendant was holding over under a new contract for a temporary occupation, then, upon no theory of the law, could he be held as undertaking by implication, to hold for a year. Eor that would be the substitution of an implied contract, not only where there was one express one, but would be the substitution of an implied contract of one import when there was an express one of another import. This new and different contract was testified to by the defendant, and there was not a word of testimony in opposition to it. The jury, no matter how instructed, would have no right to capriciously disregard that evidence, so long as it was uncontradicted. Where a plaintiff wholly fails to make out a cause of action upon the evidence, he can assign no error upon the instructions.

The judgment of the court below will be affirmed.

Affirmed.

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